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Monday, July 02, 2012

(BN) Twitter Must Turn Over Information on Protester’s Posts

July 2 (Bloomberg) -- Twitter Inc. must turn over information about an Occupy Wall Street protester's posts, a New York judge ruled, comparing the duties of social media sites to those of witnesses to a street crime.

State Supreme Court Judge Matthew A. Sciarrino Jr.'s June 30 ruling denied Twitter's request to quash a subpoena from Manhattan District Attorney Cyrus Vance Jr. The company must turn over tweets posted by Malcolm Harris from Sept. 15, 2011, to Dec. 30, 2011.

"What you give to the public belongs to the public. What you keep to yourself belongs only to you," Sciarrino said in a ruling that addressed the difficulty of setting law in the evolving world of social media.

The case will determine whether Twitter faces the burden of responding to subpoenas for its users, the San Francisco-based company has said. The outcome is significant throughout the U.S. as law enforcement becomes more aggressive in seeking information about what people do and say on the Internet, the American Civil Liberties Union said in a May 31 court filing.

Sciarrino said the duties of Twitter and other social media companies are similar to those of witnesses to street crimes.

'Information Superhighway'

"Today the street is an online, information superhighway, and the witness can be the third party providers like Twitter, Facebook, Instagram, Pinterest, or the next hot social media application," Sciarrino wrote.

Twitter provides real-time messaging and allows users to make posts that are broadcast to people who sign up to follow them. Facebook Inc., based in Menlo Park, California, owns the world's largest social-networking service.

"We are disappointed in the judge's decision and are considering our options," Carolyn Penner, a Twitter spokeswoman, said in a statement. "Twitter's terms of service have long made it absolutely clear that its users own their content. We continue to have a steadfast commitment to our users and their rights."

Twitter had asked Sciarrino to reverse an April ruling denying Harris's request to quash a subpoena from Vance. Sciarrino ordered Twitter instead to comply with the subpoena, saying its users don't have standing to argue the issue, while the company does.

After the judge's April 20 decision, Twitter updated its terms effective May 17 to say that users retain their right to any content they submit, post or display.

Warrant Required

Sciarrino partly agreed with the company's motion to quash his April ruling, by finding that content less than 180 days old requires a search warrant. As a result, Dec. 31 tweets by Harris won't have to be turned over without a warrant.

"We are pleased that the court has ruled for a second time that the tweets at issue must be turned over," Chief Assistant District Attorney Daniel R. Alonso said in an e-mailed statement. "We look forward to Twitter's complying and to moving forward with the trial."

Samuel Adams, Benjamin Franklin, Alexander Hamilton and Thomas Jefferson would have loved to post their opinions on Twitter as much as they loved to write for the newspapers of their day, Sciarrino wrote in his opinion.

"Those men, and countless soldiers in service to this nation, have risked their lives for our right to tweet or to post an article on Facebook; but that is not the same as arguing that those public tweets are protected," he said.

Constitutional Rights

The ACLU had said Harris should be able to argue against the subpoena because his First Amendment right to free speech and his Fourth Amendment right to privacy are implicated.

Twitter said that if the first court order stood, it would be "put in the untenable position of either providing user communications and account information in response to all subpoenas or attempting to vindicate its users' rights by moving to quash these subpoenas itself." The company said it would probably know nothing about the underlying facts in such cases to determine whether the subpoenas were improper.

The company said it had the right to oppose the prior court order under the federal Stored Communications Act, a law enacted in 1986 which governs disclosure of electronic communications, and argued that the finding would place an undue burden on the company.

Vance's subpoena seeks past Twitter posts and user information linked to the "@destructuremal" account of Harris, who was arrested with about 700 protesters on the Brooklyn Bridge on Oct. 1, according to court filings.

Location Sought

The information sought covers about 3 1/2 months, including Harris's arrest date, as well as Internet Protocol addresses corresponding to each post -- something that would allow prosecutors to see Harris's location at the time the posts were sent.

Twitter had asked that prosecutors be forced to request a search warrant for the records, calling its prior subpoena "unlawful" because the posts aren't readily accessible to the public. Twitter said prosecutors can't argue that Harris's posts are public because they can't access his old posts themselves.

"Otherwise the government would have already obtained the subject's tweets itself and avoided wasting all the time and resources it has trying to enforce an unlawful subpoena issued to Twitter," the company said in court papers.

Martin Stolar, an attorney with the National Lawyers Guild who had filed the request to invalidate the subpoena on Feb. 6 on behalf of Harris, called it "unusual" for Twitter to become involved in such a case.

'Neutral Arbiter'

"Most people who host things like this just say, 'I'm a neutral arbiter here, the source through which communications go,'" Stolar said in a phone interview before a hearing before Sciarrino on the issue last month.

There was no indication Harris had a conspiratorial role or did anything out of the ordinary, Stolar has said.

Morrison & Foerster LLP said in a June newsletter on legal issues in social media that the court's ruling essentially meant that Harris's posts weren't his. The court further found that Harris's Fourth Amendment rights weren't an issue because the Internet isn't a physical "home" -- and a search warrant wasn't therefore required, the law firm said.

"In short, the court has made it clear that users of social media who also find themselves charged with a criminal offense should have no expectation that potentially relevant information will be considered private or beyond the reach of a subpoena," Morrison & Foerster wrote.

The case is People of the State of New York v. Harris, 11-80152, Supreme Court of the State of New York (Manhattan).